Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 1142 (GUJ)

State of Gujarat v. Oghadbhai Kanabhai Bhil

2015-11-02

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. Jhaveri, J. 1. This appeal is directed against the judgment and order of acquittal dated 25.08.2006 passed by the learned Additional Sessions Judge, Bhavnagar, Camp at Mahuva in Sessions Case No. 128 of 2005 whereby, the respondent herein-original accused is convicted under Sections 304, Part-II, 323 of the Indian Penal Code and Section 135 of the Bombay Police Act and was awarded 4 years imprisonment for offence under Section304, Part-II of IPC, 1 day's imprisonment for offence under Section 323 of IPC and 7 day's imprisonment for offence under Section 135 of the Bombay Police Act. 2. It is the case of the prosecution that on 26.07.2004, at around 06:00 to 06:30 in the evening, the accused and the deceased were quarreling with each other for dispute regarding boundary of the agricultural field. They had heated exchanges between them. At that time, the accused got angry and gave stick blow on the head of the deceased, as a result of which the deceased got serious head injuries and succumbed to it. The stick was having iron round at the end of it. Accordingly, for the said alleged offence, a complaint came to be lodged. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court, Bhavnagar, Camp at Mahuva. 2.2 The trial Court framed charges against the accused. The accused pleaded not guilty to the charges and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 3. To prove the case against the respondent-accused, the prosecution examined the following witnesses; Wt. No. Name of witness Exhibit No. 1 Shivabhai Laxmanbhai 13 2 Panuben Ghudabhai 14 3 Nuriben Ghudabhai 15 4 Abubhai Kasambhai 16 5 Dr. Jagsharan Ramdev Shrivastav 10 6 Naranji Gabhabhai Sankhat 17 7 Maganbhai Mohanbhai Chauhan 20 8 Dhansukhrai Odhavaji Vyas 7 9 Dahyabhai Ganajibhai Chaudhary 27 10 Indarvijaysinh Barubha Chudasama 30 11 Bhagvanbhai Ramjibhai Kanani 40 3.1 The prosecution also produced and relied upon several documentary evidence, particularly, the postmortem report at Exh. 11, complaint at Exh. 28, MLC register extract at Exh. 29, treatment and blood sample certificate of the accused at Exh. 44, FSL report at Exh. 50 and serological report at Exh. 52. 11, complaint at Exh. 28, MLC register extract at Exh. 29, treatment and blood sample certificate of the accused at Exh. 44, FSL report at Exh. 50 and serological report at Exh. 52. 3.2 At the end of the trial and after recording the further statement of the accused under Section 313 of the Code and hearing arguments on behalf of the prosecution and the defence, the learned Additional Sessions Judge acquitted the accused of the offence punishable under Section 302 of the Indian Penal Code by the impugned judgment and order. 3.3 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the learned Additional Sessions Judge, the appellant-State has preferred the present appeal. 4. Learned APP Ms. Shah for the appellant-State taken us through the evidence of Dr. Jagsaran Ramdev Shrivastav, PW No. 2 at Exh. 10, wherein he has described head injuries to the deceased of 8 cm and corresponding two injuries in the brain, which were sufficient to cause death. Learned APP also taken us through the evidence of independent witness-Shivabhai Laxmmanbhai-Exh. 13, who was the complainant and the injured witness and contended that in view of the evidence on record, this is a fit case where accused ought to have been convicted under Section 302 of IPC. 5. Learned Counsel Mr. Yogendra Thakore has instructions to appear for the respondent-accused. 6. Learned Counsel Mr. Thakore contended that there is only single blow and that too by stick. He contended that the respondent-accused was carrying on the stick because he was an agriculturist and it is normal for an agriculturist to carry a stick. He contended that in fact, it was the deceased who was aggressor and started abusing the respondent-accused and therefore, in a heat of the moment, the incident had happened and therefore, the learned Judge has rightly convicted the respondent-accused for offence under Section 304, Part-II of IPC. 7. At the outset, it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in a catena of decisions. 7. At the outset, it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr., (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." 7.1 Further, in the case of Chandrappa v. State of Karnataka, (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles; "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: [1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." 7.2 Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 7.3 Even in the case of State of Goa V. Sanjay Thakran & Another, (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under; "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 7.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors, 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs v. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal are well settled. 7.5 In the case of Luna Ram v. Bhupat Singh and Ors, (2009) SCC 749, the Apex Court in paras-10 and 11 has held as under: "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. 11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." 7.6 Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. v. State, rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SC 321 , the Apex Court in para 4 has held as under: "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. v. State, rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SC 321 , the Apex Court in para 4 has held as under: "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 ]" 8. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. [Vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 ]" 8. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka v. Hemareddy, AIR 1981, SC 1417, wherein it is held as under: "...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93 :( AIR 1967 SC 1124 ) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." 8.1 Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and others v. State of Karnataka, JT 2013 (7) SC 66. Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence is not necessary. 9. We have gone through the oral as well as documentary evidence on record. After appreciating the evidence on record, the Court below has convicted the accused for offence under Sections 304, Part-II and 323 of IPC and Section 135 of the Bombay Police Act. Taking into consideration the medical evidence and the view taken by the trial Court, we are of the opinion that no case is made out to convict the accused for offence under Section 302 of IPC. 10. Learned APP is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored material evidence. Hence, we are of the considered opinion that the Court below has not committed any error. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and therefore, find no reasons to entertain this appeal. 11. Hence, we are of the considered opinion that the Court below has not committed any error. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and therefore, find no reasons to entertain this appeal. 11. For the foregoing reasons, the appeal is dismissed and the impugned judgment and order is confirmed. Bail bonds stand discharged. Record and proceedings, if lying here, be sent to the Court below forthwith.